Pinson v. State , 91 Ark. 434 ( 1909 )

Wood, J.

(after stating the facts.) It is unnecessary to discuss seriatim the objections of appellant to the rulings of the court. It suffices to say we find no reversible error in any of them. The most important question in the case, as conceded by appellant’s counsel, is whether one who enters a store house, occupied as a saloon, in the night time, with intent formed in his mind before or at the very time he enters to commit a felony, can be guilty of burglary where the house he enters is open for business, and the entry is through the open door during business hours, and without any apparent fraud or deception practiced - on the owner in making the entry. The sections of our statute pertinent to the inquiry are as follows: Sec. 1603. “Burglary is the unlawful entering a house, tenement, railway car or other building, boat, vessel or water craft in the night time, with the intent to commit a felony.” Sec. 1604. “The manner of breaking or entering is not material, further than it may show the intent of the offender.” Sec. 1605, Kirby’s Digest provides: “If any person shall, in the night time, wilfully and maliciously, and with force, break or enter any house, tenement, boat or other vessel, or building, although not specifically named herein, with the intent to commit any felony whatever, he shall be deemed guilty of burglary.”

At the common law burglary was the unlawful breaking and entering in the night of another’s dwelling with intent to commit a felony therein. 1 Bish. New Cr. Daw, § 559; Russell on Crimes, p. 785. As will be seen, our statute, while retaining the elements of common law burglary, has also greatly enlarged upon these, so that, under the statute supra, the unlawful entering, without breaking, of the house, etc., in the night time with the intent to commit a felony is burglary. The unlawful entering, in the sense of the statute, is going into the house, etc., with the intention formed in the mind at the time the entry is made to commit a felony. No one has the right to enter upon the premises of another with the intent at the time he does so to commit a felony. No one is invited or has permission to do any such thing as that. A saloon keeper even extends to the public no such invitation as that, and one who enters a saloon with the predetermined purpose to commit some felony therein, whether by day or night, goes there in invitum, and, were such purpose known to the owner beforehand, he could prevent such person from entering his place of business. Therefore one who enters with such evil design perpetrates a fraud and deception upon the owner, for the owner invites only those who come for lawful purpose. Section 459 of the Penal Code of Caliifornia provides: “Every person who enters any house, room, store * * * with intent to comit grand or petit larceny, or any felony, is guilty of burglary.” In People v. Barry, 94 Cal. 481, the Supreme Court, construing the section, says: “As to the acts which shall constitute burglary, that is a matter left entirely to the policy of the Legislature, within its constitutional powers; and when that body has said that every person who enters a store with the intent to commit a larceny is guilty of burglary, the language is so plain and simple that rules of statutory construction are not required to be consulted; the meaning is patent upon the face of the statute. No words are found in the statute qualifying the character, kind, time, or manner of entry, save that such entry must be accompanied with certain intent; and it would be judicial legislation for this court to' interpolate other conditions into the section of the code.” The court then proceeds to reason upon facts which showed that one had entered a grocery store during business hours, and had attempted to commit larceny, and concludes that the entry was unlawful, saying: “He is not one of the public invited, nor is he entitled to enter. Such a party could be refused admission at the threshold, or ejected from the premises after the entry was accomplished.” The court adds: “If the presence of such party in the store is lawful, the fact that he gained ingress openly and publicly through the front door, rather than clandestinely by way of the skylight or the cellar, is not material, and the result would be that no burglary could be committed in a store during business hours, regardless of the nature of the entry.” We adopt the reasoning of this case. See also People v. Brittain, 142 Cal. 8, and cases cited. Of course, in States where the common law rule prevails requiring both the breaking and entry to constitute burglary, decisions based upon such rule could not be authority for construing a statute where the unlawful entry without breaking is sufficient. Such are State v. Newbegin, 25 Me. 502, and Clark v. Com., 25 Gratt. 908.

The case of State v. Moore, 12 N. H. 42, is more nearly in point. But, as pointed out by the Supreme Court of California, speaking of State v. Moore, 12 N. H. 42: “The primary question involved” in the latter case “was as to the sufficiency of the evidence to show a criminal intent in entering the 'building, and did not reach the matter as to the character of the entry.”

We can readily see that there may be great difficulty oftentimes in proving that the entry was with the felonious intent at the time of such entry to commit a felony. But that is no reason for saying that a party who enters during business hours through the open door in the regular way could not be guilty of an unlawful entry, and thus practically annul the statute. That is matter for the Legislature. As the law now stands, where • the unlawful entry is shown, or where the evidence in each particular case as it may arise is sufficient to warrant the jury in finding that there was an unlawful entry, as it does in this case, it must be held, other conditions prescribed existing, that the party so entering is guilty of burglary.

There is no error for which to reverse the judgment, and it is affirmed.